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March 2013

Proposed Addition of BPA to Prop. 65 Toxicant List Creates Potential New Litigation Threat for Businesses

A potential new area for lawsuits against California businesses has emerged recently with the California Environmental Protection Agency’s proposed addition of bisphenol A (BPA) as a reproductive toxicant under Prop. 65.

California’s Safe Drinking Water Toxic Enforcement Act of 1986 (Prop. 65) provides that persons doing business in California may not expose individuals to chemicals that cause cancer or reproductive toxicity without first providing warnings, nor can they discharge such chemicals into sources of drinking water. For companies manufacturing, distributing or supplying products in California, compliance with Prop. 65 can be an ongoing challenge. Private attorney-general suits under Prop. 65 are proliferating, thanks to attorneys’ fees provisions that encourage the filing of claims by individual litigants with private counsel.

BPA is used to make a variety of common consumer goods, including food and drink packaging, sports equipment, CDs and DVDs, medical devices, and cash register receipts. Aside from proposing to add BPA to its list of reproductive toxicants, California has proposed establishing a safe harbor level, or maximum allowable dose level, of 290 micrograms per day for the chemical.

On Jan. 25, Cal/EPA proposed listing BPA under Prop. 65 based on a 2008 report published by the National Toxicology Program—Center for the Evaluation of Risks to Human Reproduction (NTP-CERHR), which concluded that BPA “causes developmental toxicity in laboratory animals at high levels of exposure.” However, it is questionable whether the NTP-CERHR report was a sufficient basis for listing BPA as a human developmental toxicant under Prop. 65. The report fell short of concluding there was evidence BPA causes developmental toxicity in humans. The effects on the laboratory animals studied in the report were based on high doses well over the estimated daily intake of BPA in children or adults. Moreover, even the NTP-CERHR did not regard its report as a conclusion, but rather as an interim step in its process for evaluating the effects of BPA exposure.

The proposed listing of BPA is being challenged in a recent suit filed in Sacramento County, American Chemistry Council v. Office of Environmental Health Hazard Assessment, in which an industry group is seeking a permanent injunction blocking the rule based on the flawed interpretation of the NTP-CERHR report. Cal/EPA’s Office of Environmental Health Hazard Assessment is expected to make a decision on the proposed addition within the next few months. If the rule becomes final, it will have to survive the pending court challenge to remain enforceable.

Listing chemicals under Prop. 65 as causing cancer or reproductive toxicity requires businesses to place warnings on consumer products and in any area where individuals might be exposed, as well as triggers prohibitions against discharging the substances directly or indirectly into any source of drinking water. Because Prop. 65 levies penalties of $2,500 per violation, compliance with its provisions is a serious concern. If the proposed rule is approved and BPA is officially added to the Prop. 65 list, companies will need to comply by determining potential levels of exposure to BPA and abiding by applicable warnings requirements. The potential for new bounty hunter suits based on the alleged failure to bring BPA-containing components into compliance is real, and such claims are sure to follow in the event the proposed rule becomes final.

Gordon & Rees LLP is experienced in helping companies comply with Prop. 65 and other environmental regulations, and we are available to answer any questions or assist with compliance efforts.


Environmental/Toxic Tort

Brian M. Ledger

Environmental/Toxic Tort